v. COURT USE ONLY XXXXX XXXXX, Defendant. Attorney for the Defendant:

County Court, Jefferson County, State of Colorado Jefferson Combined Court 100 Jefferson County Parkway Golden, CO 80401-6002 THE PEOPLE OF THE STATE OF COLORADO Plaintiff, v. COURT USE ONLY XXXXX XXXXX, Defendant. Attorney for the Defendant: Case Number: 11M6626 The Orr Law Firm L.L.C. Rhidian D.W. Orr, Atty. Reg. No. 33738 Nathan Johnson, Atty. Reg. No. 42905 Shawn Gillum, Atty. Reg. No. 35682 Richard Hernandez, Atty. Reg. No. 30627 720 South Colorado Boulevard, Suite 1110-N Denver, Colorado 80246 303-818-2448 (Main) 303-845-9140 (Fax) orrlaw@orrlaw.com Division B Courtroom: BRIEF IN SUPPORT OF MOTION TO COMPEL DISCOVERY OR, IN THE ALTERNATIVE, TO DISMISS THE CHARGES Defendant, XXXXX XXXXX, submits this Brief in Support of the Motion to Compel Discovery or, In the Alternative, to Dismiss the Charges. BACKGROUND AND FACTS 1. On December 20, 2011, Trooper Sparks with the Colorado State Patrol contacted Defendant. Trooper Sparks invoked Colorado s Express Consent Law, which requires a driver to submit to a breath or blood test if an officer has probable cause to believe the driver is under the influence of alcohol. C.R.S. 42-4-1301.1. Defendant chose a blood test, according to police reports. The trooper facilitated a blood draw and submitted the sample to the Colorado Department of Public Health and Environment ( CDPHE ) Laboratory Services Division for testing. 2. Mitchell Fox-Rivera, a Blood Analyst in the CDPHE lab. He tested at least 1,700 blood samples for the presence of alcohol. Cynthia Burbach is the Toxicology Laboratory Analyst 1

Supervisor for the CDPHE. As a Supervising Analyst, Ms. Burbach s duty is to oversee testing analysts, including Mr. Fox-Rivera and others like him, and apply standard operating procedures. See the Rules Pertaining to Testing for Alcohol and Other Drugs, 5 CCR 1005-2, 1.5 (definitions); Appendix 2C (Laboratory Certification Onsite Evaluation Standards). These regulations refer at several places to distinctions between a Testing Analyst (Mr. Fox-Rivera and others like him) and a Supervising Analyst (Ms. Burbach). Id. 3. On March 21, 2012, Ms. Burbach, Mr. Fox-Rivera s supervisor, sent an email to Chris Helsor with the Colorado District Attorneys Council, attached as Exhibit A. Ms. Burbach notified Mr. Halsor that Mr. Fox-Rivera was terminated on March 14, 2012 for unsatisfactory performance. Specifically, several blood samples analyzed by Mr. Fox-Rivera were reported outside the appropriate range. This was confirmed through independent testing by another analyst in the Forensic Toxicology Laboratory. Ms. Burback said the CDPHE lab was in the process of re-analyzing 1,700 samples that Mr. Fox-Rivera analyzed. 1 4. According to an article in the Denver Post, attached as Exhibit B, Mr. Fox-Rivera said the erroneous BAC reports are the result of Ms. Burbach s failure to review and approve blood samples: Id. Because the procedures require that I perform the initial review, and the toxicology supervisor review all the data, it was anticipated that mistakes would occur and be corrected.it was not my role to review the data for forensic and litigation needs. 5. In a March 21 email, attached as Exhibit A, Ms. Burbach agreed that Mr. Fox-Rivera was responsible only for what she termed the initial analysis of BAC evidence. That Mr. Fox- Rivera was responsible only for initial analysis is consistent with the Rules Pertaining to Testing for Alcohol and Other Drugs, which require the Supervising Analyst, Ms. Burbach, to oversee testing analyst, Mr. Fox-Rivera, and other, similar analysts. See 2, supra. 6. Despite Ms. Burbach s role as Supervising Analyst who signed off on nearly all of Mr. Fox-Rivera s chemical BAC reports, she has attempted to shift and spread blame away from herself. For example, Ms. Burbach issued an affidavit, attached as Exhibit C, placing responsibility for laboratory error solely upon him. 7. Other than dismissing Mr. Fox-Rivera, the only corrective measure Ms. Burbach specified has been to re-test the blood samples initially tested by Mr. Fox-Rivera. But this is only the beginning of the analysis and investigation, not the end. 1 It is worth mentioning that the People did not disclose Mr. Burbach s email to the defense. In fact, the People have not produced any of the materials mentioned in this Brief. Defendant obtained the Exhibits through Colorado Open Records requests and learned about the extent of the problem through news reports. 2

8. Ms. Burbach swears in her affidavit, As of this date, April 20th, 2012 No retest has resulted in a lower actual BAC than was reported. Id. This is simply not true. 9. On November 9, 2011, Mr. Fox-Rivera analyzed a blood sample and reported a.146 BAC, which is attached as Exhibit D. Ms. Burbach s signature attests that she reviewed and approved this blood sample. On April 18, 2012, two days before Ms. Burbach executed her affidavit, she reviewed and approved an amended report, attached as Exhibit E. The amended report, which includes Mr. Burbach s signature, shows the new analyst reported a.134 BAC. Id. This was obviously lower than the originally-reported test result. In addition, undersigned counsel is aware of at least four additional instances where Ms. Burbach singed an amended blood report before she executed her affidavit, all of which provided a lower BAC than the initial test. 10. Whether Ms. Burbach was being untruthful or incompetent when she signed her affidavit demonstrates an additional, real need for the defense to have the opportunity to review the materials it requests in the Motion to Compel Discovery or, In the Alternative, to Dismiss the Charges. The defense cannot be expected to rely on Ms. Burbach s assertions that the problem with the CDPHE lab has been corrected and that the amended blood tests are accurate. Furthermore, it is evident that Mr. Burbach, as the Supervising Analyst, has approved many erroneous blood reports. Defendant has a right to independently verify Ms. Burbach s findings and conclusions. 11. The Defendant has consulted with Janine Arvizu, a nationally-recognized expert in blood testing and analysis, and quality assessments of laboratories and their work product. Ms. Arvizu has been qualified as an expert witness in many states and federal courts. To analyze the blood test evidence for reliability and validity in this case, an independent analyst must have the requested information, according to Ms. Arvizu. The materials requested will help verify and clarify why and how Ms. Burbach signed off on (or rubberstamped) so many erroneous blood reports. To conduct an independent data quality assessment of a reported forensic blood alcohol result, and the understand the validity and reliability of the blood draw, a reviewer must have access to records that will enable an assessment of the efficacy of the blood draw, the laboratory s operations, and the case-specific testing. APPLICATION TO THE LAW A. The government must disclose all material records in its possession. 12. Crim. P 16, Part I (a)(2) requires the prosecution to disclose to the defense any material or information within his or her possession or control which tends to negate the guilt of the accused as to the offense charged or would tend to reduce the punishment therefore. 13. Materials are in the possession or control of the prosecution if the materials are in the possession or control of members of his or her staff and of any other who have participated in the 3

investigation or evaluation of the case and who either regularly report, or with reference to the particular case have reported, to his or her office. Crim. P. 16, Part I (a)(3) (emphasis added). The prosecution is required to ensure that a flow of information is maintained between the various investigative personnel and his or her office sufficient to place within his or her possession or control all material and information relevant to the accused and the offense charged. Crim. P. 16, Part I (b)(4). 14. The records requested in Defendant s Motion to Compel Discovery are, therefore, within the possession or control of the prosecution. Law enforcement agencies in this jurisdiction routinely and exclusively submit blood samples to the CDPHE Laboratory Services Division for testing. The CDPHE lab analyzes those tests and reports the results to the prosecution. As such, the CDPHE lab participated in the investigation and evaluation of this case. The CDPHE lab regularly reports to the prosecution. And the CDPHE lab reported to the prosecution about this particular case. 15. Even assuming, for the sake of argument, the materials were not in the possession or control of the prosecution, the prosecuting attorney shall use diligent good faith efforts to cause such material to be made available to the defense [u]pon the defense s request of material which would be discoverable if in the possession or control of the prosecuting attorney and which is in the possession or control of other governmental personnel. Crim. P. 16, Part I (c)(1). 16. Regarding actual disclosure and its relation to due process, the controlling constitutional standard is very well settled. In Brady v. Maryland, 373 U.S. 83, 87 (1963), the Supreme Court held that "suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." See also In re Attorney C., 47 P.3d 1167, 1170-71 (Colo. 2002). 17. Generally, evidence is material and exculpatory if (1) it possesses exculpatory value that is apparent before the evidence is destroyed; and (2) it is of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means. People v. Eagen, 892 P.2d 426, 428 (Colo. App. 1994). Rule 16, Part I (a)(2) mandates that the prosecuting attorney shall disclose to defense counsel any material or information within his possession or control which tends to negate the guilt of the accused as to the offense charged or would tend to reduce the punishment therefore. In re Attorney C, 47 P.3d at 1171 (emphasis in original; internal citations omitted). 18. Material evidence includes that which may be used for impeachment. See People v. District Court, 790 P.2d 332 (Colo. 1990) (concluding that the significance of impeachment evidence in determining the outcome of a criminal prosecution often matches that of substantive or exculpatory evidence ); People v. Doss, 782 P.2d 1198 (Colo. App. 1989) (finding that [a]ny distinction between impeachment and exculpatory evidence has been rejected, and both fall within the Brady rule since such evidence, if disclosed and used effectively, may make the 4

difference between a conviction or an acquittal ) (citing United States v. Bagley, 473 U.S. 667 (1985)). 19. It also bears emphasis that the prosecution s duty to disclose material evidence that is in its control is virtually absolute, without exception. Pennsylvania v. Ritchie, 480 U.S. 39 (1987); and Exline v. Gunter, 985 F.2d 487 (10th Cir. 1993), are perfectly illustrative of this. In Ritchie and Exline, the government sought to withhold governmental records pertaining to sexual abuse of children. Ritchie, 480 U.S. at 43; Exline, 985 F.2d at 488. There could scarcely be any area in which legitimate concerns about privacy are stronger. Yet both Ritchie and Exline hold that even this otherwise privileged information must be disclosed to the accused, because it is in the government s possession. Ritchie, 480 U.S. at 58; Exline, 985 F.2d at 489. Therefore, these cases demonstrate that virtually no governmental privilege over "material" evidence within its possession may be exercised against the accused while the government is prosecuting the accused for alleged crime. See also People v. Walker, 666 P.2d 113 (Colo. 1983) (holding that police officer's usual privilege in personnel records must yield to the defendant's always "compelling" interest in accessing material evidence possessed by the government). 20. When the accused moves for disclosure of material evidence, the burden of the defense to establish that the Department's records are likely "material" is minimal. After all, when evidence is solely within the government's possession, it follows that a defendant cannot prove the specific content of what has been withheld. United States v. Valenzuala-Bernal, 458 U.S. 858, 871 (1982); Ritchie, supra. Thus, in requesting access to governmental records, the duty of the accused is no higher than to "at least make some plausible showing" that the records contain information "both material and favorable to his defense." Ritchie, 480 U.S. at n.15 (emphasis added); see also People v. Morgan, 606 P.2d 1296, 1299 (1980). B. The records are inherently exculpatory and bear upon the reliability of a chemical BAC test result, which is the linchpin of any DUI prosecution. 21. In this case, the relevance and exculpatory value of requested materials are obvious. The government seeks to prosecute Defendant on the basis of a CDPHE blood test. Ms. Burbach was the Supervising Analyst who signed off on the test in this case. 22. Blood analyses in a DUI case is a critical piece of evidence, because blood testing can establish innocence as well as guilt. People v. Gillett, 629 P.2d 613, 618 (Colo. 1981). 23. In establishing its statutory system for chemical BAC testing, the General Assembly charged the CDPHE with the responsibility for designing and maintaining a testing system that produces results that are reliable. C.R.S. 42-4-1301(6)(c), (i)(i). The Department's regulations are so prominent in the statutory scheme that the mere certification of compliance with these regulations is generally a sufficient foundation for admitting chemical BAC evidence in a criminal trial. C.R.S. 42-4-1301(6)(g). Moreover, if Department-certified testing indicates a driver's BAC is.08 or greater, the evidence shall be deemed prima facie evidence of DUI per se. C.R.S. 42-4-1301(2)(a). If testing compliant with Department regulations indicates a driver's 5

BAC is at a level below.05 or between.05 and.08, then mandatory and permissible inferences arise on which the jury will predicate its verdicts. C.R.S. 42-4-1301(6)(a). 24. In addition to these statutory consequences, the Department's certifications of chemical BAC testing carry simple but undoubted prestige and persuasive value in the minds of jurors. Certified testing results are persuasive because they have the imprimatur of a governmental agency. Cf. Wilson v. People, 743 P.2d 415 (Colo. 1987) (observing that some forms of prosecutorial misconduct are especially prejudicial, due to the prestige of the district attorney's status as a public official). 25. However, by the admission of the Ms. Burbach, Supervising Analyst, there has been systemic error affecting virtually every test conducted at her lab by Mr. Fox-Rivera. Importantly, she signed off an all of those tests, claiming she had reviewed and approved the results. 26. The systematic failure of the laboratory's Testing Analyst to comply with the Department's standard operating procedures, and the likewise systematic failure of the laboratory's Supervising Analyst to identify and correct such errors before a run of 1,700 cases, strongly impeaches the reliability of any laboratory result and of Ms. Burbach s approval of all other tests at the CDPHE. 27. Such impeachment may well, moreover, serve as the basis for excluding chemical BAC evidence or for eliminating the statutory presumption supporting guilt in a criminal trial. 28. When error is repetitious, it casts strong doubt on any claim that the error was random or the result of isolated mistake. See e.g., People v. Spoto, 795 P.2d 1314 (Colo. 1990) (discussing the doctrine of chances); People v. Rath, 44 P.3d 1033 (Colo. 2002) (explaining that modus operandi and common schemes tend to negate a claim of mistake or accident). 29. As such, the circumstances described above obliterate any notion that Ms. Burbach's certified laboratory maintains regular compliance with the Department's prescribed standard operating procedure, or that error by any testing analyst will be identified and corrected when Ms. Burbach signs-off on results as the Supervising Analyst. 30. Nor can the exculpatory value of this evidence be eclipsed by Ms. Burbach s self-serving assurances, who has become a self-interested and conflicted party. Indeed, she has been either untruthful or incompetent in her sworn affidavit issued to try to explain this situation. See 7-9, supra. The security of her position as laboratory supervisor for the CDHPE would be threatened by disclosure of systemic laboratory error beyond those cases initiated by Mr. Fox- Rivera. 31. Ms. Burbach asserts that the lab's problems will be sufficiently resolved through retesting all of the cases Mr. Fox-Rivera analyzed. But by declining to examine the integrity of results in other cases, she is effectively shifting and spreading blame away from herself and onto 6

Mr. Fox-Rivera. The self-serving inference from such a limited investigation is that only the initial analyst is at fault when erroneous BAC results are obtained, while she and any other Supervising Analyst, are blameless. 32. Such limited, self-serving investigatory measures by a conflicted party cannot be deemed sufficient to assure the reliability of testing procedures where the laboratory's results are offered as grounds for a presumption against the accused. When two or more people are implicated in misdeeds, the tendency of one to shift and spread blame to the other is common, and this makes self-serving assurances inherently unreliable. Lilly v. Virginia, 527 U.S. 116, 131 (1999); see also Davis v. Alaska, 415 U.S. 308 (1974) (finding evidence bearing on a witness' bias and motivation to fabricate is a prototypical form of impeachment). 33. Therefore, it is much more than merely "plausible" that records relating to laboratory error at Ms. Burbach's laboratory have exculpatory value in this case. See Ritchie, supra. The information relates to chemical BAC testing, which is the linchpin of the case, and it is inherently exculpatory. 34. As further grounds for this motion, Defendant states that denial of the requested specific discovery will deny Defendant the following constitutional rights: a. The right to not be deprived of his life and liberty without due process of law as guaranteed by the Fourteenth Amendment to the United States Constitution and Article II, Section 25 of the Colorado Constitution; b. The right to confront and cross-examine the witnesses against him as required by the Sixth and Fourteenth Amendments to the United States Constitution and Article II, Section 16 of the Colorado Constitution; c. The right to effective assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Article II, Section 16 of the Colorado Constitution; and d. The right to obtain use in his defense evidence favorable to him or exculpatory in nature, either on the issue of guilt or punishment, as guaranteed by the Fourteenth Amendment to the United States Constitution and Article II, Section 25 of the Colorado Constitution. CONCLUSION Defendant requests the Court to compel the prosecution to disclose the records and information listed in Defendant s Motion to Compel Discovery or, In the Alternative, to Dismiss the Charges. 7

Respectfully submitted, Dated: September 6, 2012 Attorney for the Defendant: The Orr Law Firm L.L.C. Rhidian D.W. Orr Nathan Johnson Shawn Gillum Richard Hernandez CERTIFICATE OF MAILING I certify that on 06/06/2012 the above-titled Motion was filed with the Court by [ X ] mail using the United States Postal Service or [ ] personal delivery to the below address; and a true and accurate copy was served on the First Judicial District Attorney s Office by fax to the following number: 303-271-6888. Jefferson County Court Division B 100 Jefferson County Pkwy. Golden, CO 80401 Shawn Gillum Attorney at Law The Orr Law Firm, LLC. 8